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  • WisBar News
    February 09, 2016

    Sexually Violent Persons Challenge Commitment Discharge Law, Supreme Court May Hear It

    The Wisconsin Appeals Court has certified the case for possible review by the Wisconsin Supreme Court.

    Joe Forward

    Feb. 9, 2016 – Two men who were civilly committed as sexually violent want to be released, and filed a discharge petition. Now the Wisconsin Supreme Court may hear their challenge to a 2013 law that changed the standard for review of such petitions.

    A person who is civilly committed as a sexually violent person can later petition for discharge, and must prove they no longer meet the criteria for commitment.

    Prior to late 2013, under Wis. Stat. section 980.09 (2011-12), circuit courts could set a hearing for trial if the court determined that the petition contained “facts from which the court or jury may conclude that the person does not meet the criteria for commitment.”

    In making that determination, the court would review the petition, current or past reports, supporting documents, the state’s response, and arguments of counsel on both sides.

    In December 2013, however, the law changed under 2013 Wisconsin Act 84, making it harder for petitioners to receive a trial. Under Act 84, circuit courts could set the case for trial only if “the court determines that the record contains facts from which a court or jury would likely conclude the person no longer meets the criteria for commitment.”

    Two petitioners, David Hager Jr. and Howard Carter, challenged Act 84. They say the new law improperly allows circuit courts to weigh evidence by requiring circuit courts to rule whether a jury “would likely conclude” the petitioner is not a risk.

    The Wisconsin Appeals Court recently certified the consolidated cases to the supreme court, asking whether circuit courts are allowed to weigh the evidence in these cases, which the supreme court seemingly prohibited in State v. Arends, 2010 WI 44.

    “The State contends the new version of the statute was intended to make the burden more difficult for the committed person, requiring a showing that a verdict is more likely than not, rather than a mere possibility,” the certification states. “Hager contends the revision neither was intended to nor did overrule Arends. …”

    “Based on our close review of language in Wis. Stat. § 980.09, especially as it compares with the prior version of § 980.09, we see potential merit in both parties’ interpretation of the statute,” the appeals court wrote.

    If the supreme court determines that circuit courts are allowed to weigh evidence, the appeals court is also asking the supreme court to decide how the weighing is accomplished and what factors the court should consider “when predicting whether the factfinder would likely conclude the person no longer meets the criteria for commitment.”

    The appeals court also asks whether the statute unconstitutionally misallocates the burden of proof if courts can weigh the credibility of competing psychological reports when it is the petitioner that bears the burden of proving a change in condition.

    Finally, the appeals court certified the case to determine whether Act 84 applies retroactively to discharge petitions filed before the law took effect in 2013.

    The appeals court noted that no published opinion has addressed Act 84’s new statutory language, despite the large number of discharge petitions filed.

    “[E]arly consideration of these issues by the Wisconsin Supreme Court will promote judicial efficiency, eliminate current uncertainty regarding application of the new statute, and further clarify the law for both the circuit courts and persons petitioning for discharge, whose liberty interests are at stake,” the certification states.

    The supreme court will accept review on certification from the court of appeals if a majority of the seven justices vote to review it.

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